GSB#2009-0405, 2011-3681, 2011-3682, 2011-3684, 2012-0197
UNION#2009-0252-0023, 2011-0252-0023, 2011-0252-0024, 2012-0252-0002, 2012-0252-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Upson)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Katherine Ferreira Koskie Minsky LLP Counsel
Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Felix Lau Ministry of Government Services Legal Services Branch Counsel
HEARING
July 15, 2013
Decision
The Proceedings
1This is an application by the Ministry of Community Safety and Correctional Services to consolidate five grievances. There are four grievances filed on behalf of David Upson and one grievance filed on behalf of Douglas Kirkwood. The Union resists the consolidation request.
The Background
2Mr. Upson has four grievances. As the Employer has not received particulars of the grievances, the application for consolidation rests on the wording on the face of the grievances as well as on an occurrence report filed by Mr. Kirkwood, which is dated November 17, 2011. The occurrence report reads as follows:
Dear Sir
This letter is in response to your letter dated November 15, 2013 compelling me to submit an occurrence report as required by the M.C.S. Act.
On Friday, November 04, 2011 I was working the 0700-1900 hours shift in central control at the Niagara Detention Centre. During the afternoon the admit gate phone would ring several times without answer, thereby constantly ringing in my module. On one occasion I answered the phone and asked the caller to phone back in a couple of minutes. At least 3 or 4 times the phone would ring several times and not be answered by the A&D staff.
I feel this was done deliberately in order to harass me. I was having a very busy day in central control and this was increasing my stress and anxiety levels.
The night before I did not sleep at all and I was totally exhausted. I have been diagnosed as having sleep apnea and I’m having a hard time keeping the CPAP mask on due to my anxiety. My doctor has been treating me for anxiety and has recently increased my medication.
Approximately 1430 hours I went into the A&D area and was involved in a physical altercation with CO Upson, the exact particulars of which I have little recollection at this time.
After the altercation I was seen by the nurse in the staff room. The nurse indicated to me that my blood pressure was high. Deputy Jones and CO Nelson were present while my blood pressure was being tested. Deputy Jones then instructed me to go to the I/C’s office. While in the I/C’s office I told Deputy Jones that I was not feeling well and I wanted to see a doctor and he said “you can’t leave”. A short time later I asked Deputy Jones why can’t I go to the hospital and he said “you are still on duty and you can’t leave”. I was then told by Deputy Jones that I had to go to the boardroom upstairs. Lt. Simpson, CO Nelson and myself went upstairs to the boardroom.
While upstairs the nurse took my blood pressure again and said it was still high. I informed the nurse that I had a tightness in my chest and I also had a severe headache. The nurse then informed Deputy Jones that she was calling an ambulance. Before going to the hospital Deputy Jones informed me I was being suspended.
I have seen Dr. Kumarin on November 11, 2011. Dr. Kumarin is a psychiatrist practicing in Welland, Ontario. Dr. Kumarin has diagnosed me as having generalized anxiety with anxiety attacks and irritability and suffering from a major depression in partial remission. Dr. Kumarin has suggested to my family physician that my meds be altered. Dr. Kumarin states that in his opinion my mental state significantly contributed to the outburst at work.
Dr. Kumarin feels that with adequate treatment I would be able to deal with the stresses at work without a repetition of this conduct.
Submitted by Doug Kirkwood November 17, 2011
3The four grievances of Mr. Upson claim the following:
March 20, 2009 – OPSEU 2009-0252-0023
STATEMENT OF GRIEVANCE:
I grieve the Employer is in violation of, but not limited to, Articles 2 (Management Rights) and COR 15 (Overtime). I was counseled by a supervisor prior to commencement of my regular shift.
SETTLEMENT DESIRED:
Full Redress to include payment at the overtime rate from the time I was spoken to, to the commencement of my regular shift.
December 4, 2011 – OPSEU 2011-0252-0024
STATEMENT OF GRIEVANCE:
I grieve the Employer has violated specifically, but not exclusively, Article 2, 3, and 9 of the Collective Agreement in regards to the November assault that occurred and the subsequent events within the workplace that followed.
SETTLEMENT DESIRED:
Declaration of the violation. Full redress.
December 23, 2011 – OPSEU 2011-0252-0023
STATEMENT OF GRIEVANCE
I grieve the employer is in violation of, but not limited to, Article 2 (Management Rights) and Article 3 (No Discrimination/Employment Equity) of the Collective Agreement. the Employer showed the video of the assault on me to staff who were not authorized to see it. This action has poisoned my workplace.
SETTLELMENT DESIRED:
Full redress to include a statement of facts, a declaration of violation and a punitive amount to be determined at a later date.
February 10, 2012 – OPSEU 2012-0252-0002
STATEMENT OF GRIEVANCE
I grieve the Employer is in violation of, but not limited to, Article 2 (Management Rights) and Article 3 (No Discrimination/Employment Equity) of the Collective Agreement. I was notified by the Employer the day before I was to be removed from payroll, that I was being removed from payroll. The Employer did not provide any information about stoppage of payroll per its own policy. I was not able to make an informed decision.
SETTLEMENT DESIRED:
Full redress to include extension of the removal from payroll until I receive the appropriate information and punitive damages in an amount to be determined later. Make the grievor whole. THE UNION REQUESTS FULL DISCLOSURE.
4Mr. Kirkwood’s grievance makes the following claim
STATEMENT OF GRIEVANCE:
The Employer has violated specifically, but not exclusively, Article 2, 3 and 21 of the Collective Agreement in regards to discipline imposed on March-20-2012.
SETTLEMENT DESIRED:
Declaration of the violation. Full redress.
5The consolidation request proceeded on the basis that the heart of the dispute is found in paragraph five of Mr. Kirkwood’s occurrence report set out above:
Approximately 1430 hours I went into the A&D area and was involved in a physical altercation with CO Upson, the exact particulars of which I have little recollection at this time.
6The physical altercation was captured on videotape. Counsel for Mr. Kirkwood submitted that Mr. Kirkwood will not contest that he physically assaulted Mr. Upson, for which he was discharged, that being the focus of his grievance. Rather, it will be argued on behalf of Mr. Kirkwood that there are mitigating factors that speak to his reinstatement. Accordingly, it is the incident of November 4, 2011 that sits at the centre of the Board’s consideration of whether these five grievances ought to be consolidated.
7Bearing the foregoing in mind, the Employer conceded that Mr. Upson’s 2009 grievance claiming overtime has nothing to do with the November 2011 assault on Mr. Upson. Accordingly, that matter is to be scheduled separately in its own right.
8The parties were agreed on the general considerations to be brought to bear on an application to consolidate proceedings. The Rules of Procedure provide as follows:
- Consolidation of Cases
Where two or more proceedings are pending before the GSB and it appears to the GSB that,
a) they have a question of law or fact in common;
b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences, or
c) for any other reason an order ought to be made under this rule
the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that:
d) the proceedings be consolidated, or heard at the same time or one immediately after the other; and/or
e) any of the proceedings be stayed until after the determination of any other of them.
9In OPSEU (Samsone) and CSCS (Harris) it was observed at page 5 that:
The purpose of consolidation is to make the best use of resources by saving time as well as reduce the risk of inconsistent findings.
10Here, the thrust of the Employer’s submissions is that the risk of inconsistent findings supports consolidation. It says that Mr. Kirkwood’s occurrence report claims that the personnel in A&D, where Mr. Upson was posted, were deliberately harassing him by not answering their phone, which also rings in the Control Module, where Mr. Kirkwood was stationed. Mr. Upson’s general complaint includes the failure of the Employer to provide a workplace free of harassment. Accordingly, they each make claims against the other on the central facts in issue. Without consolidation, there is a risk of inconsistent findings.
11The thrust of the Union’s submissions is that there will be no time-savings in consolidation, particularly with respect to Mr. Kirkwood’s discharge grievance, which will become bogged down in other considerations. Also, both counsel for OPSEU representing Kirkwood and counsel for OPSEU representing Upson said that it would be detrimental for them to participate in a hearing together. Indeed, until after mid-August, it would be contrary to Mr. Kirkwood’s probation order, he having pleaded guilty to the assault and been ordered to have no contact with Mr. Upson before then.
12In the alternative, counsel for OPSEU both submitted that the matters ought not to be consolidated. If anything, they should be heard together.
Reasons for Decision
13Having considered the matter carefully, I first note that I was surprised that the application for consolidation was made prior to particulars having been furnished. While I can appreciate that the parties might save time and expense by not preparing particulars until they know the scope of the proceedings, it leaves the Board with less information than is desirable. For instance, neither party could be of much assistance as to the potential overlap of Employer witnesses. The decision falls to be made on what is before me.
14As set out above, the Employer has conceded that an overtime grievance that predates the central incident by some two years ought not to be consolidated.
15In my view, Mr. Upson’s grievance relating to being “removed from payroll” in February 2012 also, on its face, has little, if anything, to do with the situation between Upson and Kirkwood that led to the assault. Extrapolating from the grievance, it seems to be about the expiration of Mr. Upson’s short term disability benefits. There is neither a commonality of law or fact with Mr. Kirkwood’s discharge for the assault.
16I also find that Mr. Upson’s grievance relating to the videotape does not impinge to a significant enough extent on the issues of fact and law relating to the assault. His claim is that the videotape documenting the assault was shown to people who did not need to see it, which poisoned his workplace and caused him damage. He seeks punitive damages. None of that has any commonality with Mr. Kirkwood other than that he is in the videotape. To consolidate that grievance with Mr. Kirkwood’s would not fall within the rule. I also note that the grievance was filed more than a month after the central incident.
17That leaves me with Mr. Kirkwood’s reinstatement grievance and Mr. Upson’s grievance relating to the assault. Both grievances have at their core the assault. There will inevitably be considerable commonality between them in fact regarding the investigation and immediate aftermath of the event. Mr. Kirkwood claims, in essence, that he was provoked by Mr. Upson. Mr. Upson said, in part, at least, that the Employer did not keep him safe from Mr. Kirkwood. To the extent that it is possible to glean granularity from the face of the grievances, the relationship between the grievors is central and substantive to both cases, invoking the concern that the Board protect the proceedings from inconsistent findings.
18As to whether consolidation is appropriate, the decision of the Ontario Labour Relations Board in CAW- Canada and Dresser Canada Inc., [1987] OLRB Rep. October 1234 (Surdykowski) describes the difference between consolidating cases and hearing them together at paragraph 8 as follows:
Strictly speaking, the effect of a consolidation is to fuse two or more proceedings into one. Accordingly, consolidation will only be appropriate in circumstances where there is an identity of parties and issues in two or more proceedings. The term has come to be used somewhat more loosely so that “consolidation” may be appropriate where the parties and issues are substantially the same. Technically, it is more appropriate, in such circumstances, that the matters be “heard together” rather than “consolidated”. When matters are heard together, they retain their individual identities but the evidence and representations of the parties with respect to all matters in issue in all the proceedings are heard at one time by one trier of fact and law. Hearing matters together can be a useful alternative to consolidating them into one, where the circumstances are such that consolidation is inappropriate but the practical exigencies make it desirable to have the matters proceed together. The object of either consolidating a number of proceedings, or have them heard together, is the same; that is, to save expense and avoid a multiplicity of proceedings. Underlying these practical concerns are legal considerations; namely, the parties involved and the issues raised in the various proceedings in question. Where the parties and issues are not substantially the same, it will generally not be appropriate or particularly useful to either consolidate the various proceedings or have them heard together. It is trite to say that it will not always be obvious that two or more proceedings should or should not proceed together and the Board, as master of its own procedure, has the discretion to determine the manner in which matters brought before it will proceed.
19Although the parties in the matters before me are the same, being the Union and the Employer, the grievors are opposed in interest on many levels. The issues lack an identity of interest sufficient to find that the proceedings should be consolidated. The proceedings should retain their individual identities, but the evidence and submissions be heard at one time.
20The Union raised a concern that because the Union bears the burden of proof in the Upson grievance and the Employer bears the burden of proof in the Kirkwood grievance there would be undesirable procedural complications and confusion. However, that is not an uncommon situation. I am confident that we will be able to arrive at an order of proceeding that respects the rights and obligations of all of the participants.
21I am also confident that we will be able to arrive at a process that will permit the grievors to participate in one hearing. The Union expressed concern about the ability of each grievor to participate in the same hearing. However, if these two grievances were heard separately there would still inevitably be points in each hearing when each of the grievors would have to confront the existence of the other. Accordingly, these conjectural concerns cannot stand in the way of hearing the grievances together. There is no evidence before me that this cannot be done.
Decision
[22] GSB#2012-0197 (OPSEU 2012-0252-0006) and GSB#2011-3682 (OPSEU 2011-0252-0024) will be heard together.
[23] GSB files numbers GSB#2009-0405 (OPSEU 2009-0252-0023), GSB#2011-3681 (OPSEU 2011-0252-0023) and GSB#2011-3684 (OPSEU 2012-0252-0002) are to be scheduled through the Office of the Registrar, each in their own right.
Dated at Toronto this 8th day of August 2013.